Gagging orders have been in the news throughout 2013 as the Coalition government has sought to limit their use by councils and the NHS, who wish to prevent ‘whistle-blowing’ by former employees.
The term “Gagging orders” is somewhat sensationalist but as an employer what can you do if you wish to protect your business and reputation?
The starting point is to have a good employment contract that sets out the restrictions that you want to apply, for example in relation to confidentiality.
Those restrictions should be reasonable and carefully drafted so that they can be enforced should the worst come to the worst. When an employee leaves employment it is not normal to have any further agreement in place unless some kind of dispute is intimated. In that event it may be prudent to set up a compromise agreement in order to rule out the possibility of a claim by the employee. In exchange for an agreed payment it can be appropriate to set up further “gagging clauses” which can, in this case, be more stringent.
This last process is probably the one that is at the heart of complaints about whistle blowing, but, let’s be clear, this kind of agreement is usually legally enforceable. The point in the press is more based on morality, should the NHS ever use gagging clauses, rather than addressing the legality of them.
A good employment contract, proper termination processes and a well formulated settlement agreement where necessary should do the trick for most employers!
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